Land v. Dixon Nat'l Bank.

• Decision Date: 31 December 1883
• Citation: 14 Ill.App. 219,14 Bradw. 219
• Parties: GEORGE M. DE LANDv.DIXON NATIONAL BANK.
• Court: United States Appellate Court of Illinois

14 Ill.App. 219

14 Bradw. 219

GEORGE M. DE LAND

v.DIXON NATIONAL BANK.

Appellate Court of Illinois, Second District.

December Term, 1883.

OPINION TEXT STARTS HERE

ERROR to the Circuit Court of Lee county; the Hon. JOHN V. EUSTACE, Judge, presiding. Opinion filed February 5, 1884.

Messrs. BARGE, RATHBUN & BARGE, for plaintiff in error; that a bank assuming the duty of a collecting agent is absolutely liable for the neglig ence or default of a notary, correspondent, or its own immediate servants or agents, cited Davey v. Jones, 42 N. J. L. 28; Ayrault v. Pacific Bk., 47 N. Y. 570; Walker v. Bk. of N. Y., 9 N. Y. 582; Ætna Ins. Co. v. Alton City Bk., 25 Ill. 243; Com. Bk. of Penn. v. Union Bk. N. Y., 1 Kern, 203; Rich v. State Nat. Bk., 7 Neb. 201; C., B. & Q. R. R. Co. v. Coleman, 18 Ill. 297; N. E. Fire & M. Ins. Co. v. Schettler, 38 Ill. 166; Board of Education v. Greenebaum, 39 Ill. 609; Angell & Ames on Corporations, 9th ed., § 310.

Banks, like individuals, are liable in the character they hold themselves or their agents out to the world: Bulkley v. Derby Fishing Co., 2 Conn. 255; Wilson S. M. Co. v. Boyington, 73 Ill. 534; Perkins v. Washington Ins. Co., 4 Cowen, 660; Bank U. S. v. Dandridge, 12 Wheat. 70-89.

Bankers are presumed to know the signatures of their customers, and they pay checks purporting to be drawn by them at their peril: Weisser v. Denison, 10 N. Y. 68; First Nat. Bk., Quincy, v. Ricker, 71 Ill. 439; Price v. Neal, 3 Burr. 1354; Wilson v. Alexander, 3 Scam. 392; Hoffman v. Bk. of Milwaukee, 12 Wall. 181; U. S. Bk. v. Bk. of Ga., 10 Wheat. 333.

The subsequent ratification of the acts of an agent are equivalent to a previous express authority: Hoyt v. Thompson, 19 N. Y. 207; Morris v. Tillson, 81 Ill. 607; Rich v. St. Nat. Bk. 7 Neb. 201; Balls. Spa Bk. v. Marine Bk., 16 Wis. 139.

Mr. A. K. TRUESDELL, for defendant in error; as to ratification, cited 1 Liverman on Agency, 44; Paley on Agency, 171; Com. Bk. of Buffalo v. Warren, 15 N. Y. 577.

Where substantial justice has been done, the verdict should not be disturbed: Glickauf v. Hirschorn, 73 Ill. 575; Toledo, W. & W. Ry. Co. v. Ingraham, 77 Ill. 309; Timmons v. Broyles, 47 Ill. 92; Flanigan v. Crull, 53 Ill. 352; Charter v. Graham, 56 Ill. 19; Graves v. Shoefelt, 60 Ill. 462.

LACEY, P. J.

The appellant had been a general depositor of money in the bank of the appellee and in his dealings with the latter had given it, at various times, his promissory notes. At the close of their dealings the appellee on the -- day of April 1877, made out and delivered to appellant a passbook and forty-two vouchers, containing a full statement of his accounts, credits and debits. The appellant had carried no pass-book since 1873, the entire account being kept by the book. On the 17th day of October, 1879, the appellant brought this suit in assumpsit, claiming a balance due. The appellee pleaded set-off of two promissory notes, one dated May 8, 1878, for $127, and one for $707.62, signed by appellant and Trueman, who was at the time cashier of the bank, dated Nov. 15, 1877. The interest on the larger note was all indorsed paid, till April 9, 1879. Appellee recovered judgment over for $1,093.93, the amount of the notes and interest.

The main points in controversy are certain checks purported to be drawn by appellant, to which he claims he never signed, or authorized to be signed, his signature; that they are in fact forgeries, and also that the small note is void because he did not owe the amount, for the reason that his bank account had been overdrawn by means of the forged checks; that if it had been correct he would not have owed the note, and that he had signed the note for the larger sum as the security of Trueman and for his mere accommodation. Therefore it was void. The main item charged against appellant to which he objects, and in which we think there can be any pretense of any injustice in erroneous charges, is a check for $600, dated Feb. 3, 1876, drawn payable to J. C. Wiswell, a commission merchant in Chicago. This check, it is claimed by appellee, was drawn by Trueman, with full authority of appellant, to cover the latter's loss in a wheat deal, on the Board of Trade in Chicago, in which he and Trueman had been jointly engaged. This appellant denies in his evidence.

It appears by the pass-book that the $600 check is off-set by a credit of “by note $600.41” which completely cancels the charge of the check.

It appears from the evidence of John Coleman, partly corroborated by the evidence of appellant himself, that appellant, on the 17th of March, 1876, gave his promissory note to cover the disputed check and interest up to that date, and forty-one cents beside; and that that note was renewed six different times, until the last note was given, which was the $707.62 note in suit.

Now appellant does not claim that he ever gave or paid any other $600 note. If this be so we are unable to see what difference it can make whether the check for $600 was forged or not, as it appears to be canceled by a corresponding credit, to wit, the note dated March 17, 1876.

Even if this note is not collectible the credit on the account still remains, and the defense should be directed against the note alone which was given to balance the account.

But we see no reason why the note should be defeated. It matters not whether appellant signed the note to accommodate Trueman to enable him to get money out of the bank, or to pay an indebtedness to the bank. The bank could have no concern whether Trueman agreed with appellant to take care of the note or not.

The appellant testifies that he gave the $707.62 note to the appellee, signed by himself alone, and that Trueman's name must have been put on it after it went out of his hands; that it was given for the accommodation of Frederick A. Trueman at the time he was the cashier of the bank. Trueman agreed to take care of the note. It is not stated how it was that Trueman wanted to use the appellant's note but the legitimate inference would...